PR939776 D0821 PR939776 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.170LW application for settlement of dispute John Coochey and Department of Defence (C2003/632) DEFENCE EMPLOYEES INDUSTRIAL AGREEMENT 1998-99: AN AGREEMENT CONCERNING THE IMPLEMENTATION OF THE DEFENCE REFORM PROGRAM AND INITIATIVES ARISING FROM PUBLIC SECTOR WORKPLACE RELATIONS AND LEGISLATIVE REFORMS (ODN C No. 21559 of 1998) Defence employee Commonwealth employment COMMISSIONER DEEGAN CANBERRA, 3 NOVEMBER 2003 Jurisdiction DECISION [1] This matter arises from a notice lodged with the Commission on 7 January 2003. The notice was in the following terms: "NOTICE is given by JOHN COOCHEY to the Commission under clause 17:7 of an Agreement dated 18 May 1988 (sic) entered into pursuant to Section 170LJ of the Workplace Relations Act 1996 and known as the Defence Employers Industrial Agreement between John Coochey and the Department of Defence. The matter in dispute relates to breaches by the Commonwealth of Australia enclosed in PART 4 of the Defence Employers Industrial Agreement of clauses 18.1, 18.2.1, 18.2.4, 21.5.1, 23.5 and 23.5.4 of the said Agreement. The following steps of the dispute settling procedure have been taken: (a) In June 1999 the Department declared the Notifier to be excess within the terms of the agreement. (b) On 9 September 1999 the Notifier accepted from the Department an offer of involuntary retrenchment inn (sic) accordance with the agreement. (c) Between the date upon which the Notifier was declared excess and the date upon which he accepted the offer of voluntary retrenchment, the Department determined that the Notifier was suitable for a vacant position within the Department of Defence. (d) In the alternative to paragraph (c), between the date on which the Notifier was declared excess and the date upon which he accepted the offer of voluntary retrenchment a position for which the Notifier was suitable became available with the Department of Defence. (e) In breach of the agreement: (i) the Department failed to maximise the redeployment opportunities available to the Notifier prior to his retrenchment; (ii) the Department failed to ensure that the Notifier was fully informed of his being found suitable for the vacant position and the nature of that position; (iii) the Department failed to assist the Notifier to transfer to the vacant position for which he was found suitable. (f) The dispute was referred through senior levels of management expressly or implicitly by correspondence between the parties over a period of approximately 12 months in or about 1999. (g) The Notifier accepted a redundancy offer on 9 September 2299 (sic) from the Department of Defence on the basis that he would be provided with another position within that Department. (h) Following the Notifier's departure from employment it was ascertained that he was suitable for another position prior to his redundancy but was not advised by the Commonwealth. (i) The Department of Defence's failure to appoint the Notifier in a position for which he was found suitable breaches the Defence Employers Industrial Agreement. (j) As a result of the failure of the Department of Defence to observe the terms of the Agreement, the Notifier has suffered Loss and damage and seeks compensation in relation thereto. DATED the 7 day of January 2003. Signature of Notifier by his Solicitor Higgins Solicitors" [2] The matter was listed for conference on 13 January 2003. At the conference Mr Coombs represented Mr Coochey and Mr Vane-Tempest, a solicitor, represented the Department of Defence. At that conference it became clear that the Department objected to the Commission dealing with the matter on the grounds that no relevant jurisdiction existed. It was agreed that the matter would be set down for hearing to determine the question of jurisdiction. [3] The matter was heard on 1 May 2003, as this was the first available opportunity convenient to counsel representing Mr Coochey. At the hearing Mr Coochey was represented by Mr Erskine, of Counsel and Mr Vane-Tempest represented the Department. [4] Both parties provided the Commission with written outlines of their submissions on the day of the hearing and presented oral argument in support. [5] The matter for determination by the Commission was whether jurisdiction exists to deal with a dispute notified pursuant to section 170LW of the Workplace Relations Act 1996 (the Act) in circumstances where the person notifying the dispute is no longer employed and the certified agreement under which the dispute is notified has been replaced by a new agreement and terminated. THE LEGISLATION [6] Section 170LW of the Act provides as follows: " 170LW Procedures for preventing and settling disputes Procedures in a certified agreement for preventing and settling disputes between the employer and employees whose employment will be subject to the agreement may, if the Commission so approves, empower the Commission to do either or both of the following: (a) to settle disputes over the application of the agreement; (b) to appoint a board of reference as described in section 131 for the purpose of settling such disputes." THE FACTS [7] The facts relevant to the determination of jurisdiction in this matter are not disputed. They are: · Mr Coochey was an employee of the Department of Defence. · In June 1999 Mr Coochey was declared to be an excess employee by the Department. · On 9 September 1999 Mr Coochey accepted an offer of voluntary retrenchment from the Department. · The applicable industrial instrument at the time Mr Coochey was declared excess and accepted voluntary retrenchment was the Defence Employees Industrial Agreement 1998-99: An Agreement Concerning the Implementation of the Defence Reform Program and Initiatives Arising from Public Sector Workplace Relations and Legislative Reforms 1 (the 1998 - 1999 Agreement). The 1998-1999 Agreement was certified on 18 May 1998 and had a nominal expiry date of 29 October 1999. The 1998-1999 Agreement was terminated with effect from 17 July 2000 by order of the Commission 2 on 26 July 2000. · A replacement agreement, the Defence Employees Certified Agreement 2000-2001 3 (the second agreement) was certified on 3 July 2000. That Agreement had a nominal expiry date of 31 December 2001. A further replacement agreement, the Defence Employees Certified Agreement 2002-2003 4 (the current agreement) then took effect on 24 April 2002. The current agreement remains in force. THE AGREEMENT PROVISIONS [8] Part 4 of the 1998-1999 Agreement contains the Dispute Settlement Procedures. Clause 27 provides: " 27. - DISPUTE AVOIDANCE AND SETTLEMENT PROCEDURES 27.1 The objective of these procedures is the avoidance and resolution of any disputes over matters covered by this Agreement, by measures based on the provision of information and explanation, consultation, cooperation and negotiation. 27.2 Employees who are aggrieved by a decision or circumstance may choose to approach the relevant manager for further advice and/or consideration of the issues raised. If this approach fails to resolve the matter, employees may choose to raise the matter at higher levels within the Department, up to and including directly to the Secretary. Employees may make arrangements to be represented in discussions. (emphasis added) 27.3 Without prejudice to either party, and except where a bona fide safety issue is involved, the parties shall ensure the continuation of work and that work practices applied during the operation of these procedures are in accordance with relevant awards, this Agreement and established custom and practice at the workplace. Where a bona fide safety issue exists, an employee shall not work in an unsafe environment but, where appropriate, accept reassignment to alternative suitable work in the meantime. In the event of unauthorised industrial action referred by the Secretary or his/her representative to the National Office of the relevant union, the National Secretary of the relevant union and the Secretary of the Department or his/her nominee will take steps to resolve the problem urgently. 27.4 Management will provide relevant information and explanation and consult with employees and their representatives. 27.5 In the event of any disagreement between the parties, or between management and an employee or employees, as to the interpretation or implementation of this Agreement the following steps will be applied. 27.6 Matters arising will be resolved at the lowest practicable level by management and employees or their representatives. 27.6.1 Initially disputes should be discussed by an employee, or their representative, with the local supervisor. 27.6.2 Where this does not resolve the concern, the dispute shall be referred to more senior levels of management (up to the Secretary, or his/her nominee) and the employee or their representative for resolution. The parties recognise that where employees choose union representation, that the union will determine the relevant level of the union to be involved in these discussions. 27.7 If the matter is not resolved after the above steps have been undertaken, it may be notified to the Australian Industrial Relations Commission. Submission of the matter to the Commission does not prejudice the right of the parties to make appropriate submissions in support of their position. 27.8 Unless the parties agree to the contrary the Commission shall, in responding to notifications, have regard to whether the parties have, in good faith, undertaken the previous steps of these procedures. 27.9 The parties agree that the Commission is empowered to settle the matters in dispute. 27.10 Nothing contained in this procedure will prevent the Department, employees or their representatives from entering into negotiations at any level if it seems likely to help resolve the problem. Where the Department, an employee or their representative does this, they must advise the other parties involved in the dispute." SUBMISSIONS ON BEHALF OF MR COOCHEY [9] It was submitted on behalf of Mr Coochey that the Commission did have jurisdiction to settle the dispute between Mr Coochey and the Department. It was argued that section 170LW of the Act and clause 27 of the 1998-1999 Agreement gave the Commission powers in this regard. It was also argued that the power given to the Commission by clause 27 of the 1998-1999 Agreement was much wider than that contained in section 170LW of the Act. It was claimed that the decision of the High Court in CFMEU v AIRC (2001) 5 was authority for this proposition. [10] According to Mr Erskine there is " no doubt that a dispute over whether the Respondent has complied with the Agreement is a dispute over matters covered by this Agreement " and is therefore a dispute which can be referred to the Commission under subclauses 27.7 and 27.9. [11] Anticipating an argument from the respondent, it was also argued by Mr Erskine, that the fact that Mr Coochey was no longer an employee and that the 1998-1999 Agreement had been terminated, did not alter the Commission's powers to deal with the dispute as the right to have the dispute settled had accrued and neither the Act nor the Agreement removed accrued rights. In support of this argument Mr Erskine referred to the decision of the High Court in Sargood Bros. v the Commonwealth (1910) 6 . [12] It was, therefore, the argument for Mr Coochey that his right to have the dispute between himself and the Department settled by the Commission was an accrued right, which had not been removed by statute or by operation of the Agreement. THE RESPONDENT'S SUBMISSIONS [13] Essentially, it was put for the Respondent that the Commission had no jurisdiction to deal with the notification lodged by Mr Coochey as: · Mr Coochey was not an employee; and · the Agreement, having been replaced (and then terminated), was no longer in operation (section 170LX). [14] It was argued that clause 27 of the 1998-1999 Agreement was the " sole vehicle " under which a dispute over the application of the Agreement could be notified to the Commission and, given that it together with the remainder of the Agreement was no longer in operation, there was no basis for the Commission's jurisdiction. The Respondent distinguished the situation where a court might hear and determine a proceeding for a breach of an agreement, noting that an action in respect of a breach of an agreement could be instituted for up to six years from the date of the breach. According to the Respondent " a court proceeding is premised on wholly different considerations to do with the exercise of judicial power ". Such actions were not contingent upon the agreement remaining in operation. [15] It was also argued by the respondent that Mr Coochey, as a former employee of the Department, had no standing to notify a dispute under the agreement as only " employees " were entitled to so notify. Clause 5 of the 1998-1999 Agreement stated that the Agreement applied to employees , and under clause 27 an employee could notify a dispute. The term employee was defined in clause 6 of the 1998-1999 Agreement to be a person employed by the Department. Upon accepting his voluntary retrenchment from 9 September 1999 Mr Coochey was no longer an employee entitled to notify a dispute pursuant to clause 27. [16] So far as it was argued that the right to have the dispute settled pursuant to clause 27 was an " accrued right ", the Respondent submitted that the terms of section 8(c) of the Acts Interpretation Act 1901 dealing with such rights had no application to certified agreements under the Act. Further, the respondent submitted that there was, in any case, a contrary intention to be found in section 170LX of the Act. The Act itself provided that an Agreement ceased operation if replaced by another agreement or terminated. The Commission had no jurisdiction to settle disputes over the application of an agreement that has ceased operation. CONCLUSIONS [17] I do not deal generally in this decision with the matter of rights that might accrue under certified agreements. I deal only with the factual situation before me and whether there is any jurisdiction to deal with Mr Coochey's notification in the particular factual circumstances of the matter before me. [18] The Act provides that a certified agreement may give the Commission power to settle disputes over the application of the agreement (section 170LW). Clause 27 of the 1998-1999 Agreement gave the Commission that power. While section 170LW and clause 27 of the Agreement remained in force, a person or party bound by the Agreement could invoke the provisions of clause 27 to notify a dispute to the Commission over the application of the Agreement. This right to notify a dispute depends upon the existence of clause 27 of the Agreement. Where the Agreement, including clause 27, has ceased operation pursuant to section 170LX of the Act, no such right to invoke the Commission's jurisdiction remains. [19] It is clear that the 1998-1999 Agreement ceased to be in operation pursuant to the provisions of section 170LX of the Act. The 1998-1999 Agreement was replaced by another Agreement on 3 July 2000 and was subsequently terminated with effect from 17 July 2000. The notification pursuant to clause 27 of the Agreement was lodged on 7 January 2003. At the time the dispute was notified there was no available power under which the notification could be made. [20] I do not deal in any detail with the arguments put to me concerning the question of an accrued right Mr Coochey may have had to have the dispute settled. While noting that there may be some force in the argument that the cessation of the operation of a certified agreement is analogous with the repeal of legislation, it is clear that section 8(c) of the Acts Interpretation Act 1901 has no direct application to the situation. I note, however, that not one of the cases referred to in support of the argument for the existence of " accrued rights " concerned a matter where no procedural step had been initiated prior to the repeal of the relevant legislation. If, in fact, there is an analogy to be made between the cessation of the operation of a certified agreement and the repeal of legislation, I have reached the conclusion that, while the right to take advantage of the dispute settlement procedure of an agreement might exist, that right does not "accrue", unless some procedural step has been taken in respect of that right, during the operation of the relevant agreement. [21] If I am wrong about the existence of an accrued right to notify a dispute and that right continues despite the cessation of the operation of the 1998-1999 Agreement, it is my view that Mr Coochey lacks the requisite standing to make such a notification. The words of clause 27.2 of the Agreement are clear. It is "(e)mployees who are aggrieved by a decision" or parties bound by the Agreement who are able invoke the procedures under a dispute settlement clause. The term " employees ", is defined in clause 6 of the Agreement as follows: "Employee means an officer or employee, either full-time or part-time, employed by the Department under the Public Service Act 1922, the Naval Defence Act 1910 or the Supply and Development Act 1939." [22] At the time the notification of the dispute was made to the Commission, Mr Coochey was not an " employee " within the meaning of clause 6, nor was he a person bound by the Agreement within the terms of clause 5. Upon accepting the voluntary retrenchment and ceasing employment with the Department (on 9 September 1999) Mr Coochey lost any right he may have had to have any dispute with the Department settled by the Commission. [23] I find, therefore, that the Commission has no jurisdiction to deal with Mr Coochey's purported notification. This matter is dismissed. BY THE COMMISSION: COMMISSIONER Printed by authority of the Commonwealth Government Printer <Price code C> 1 [D0821] 2 [Print S8364] 3 [D1360/AG779936] 4 [AG815935] 5 203 CLR 645 6 11 CLR 258